IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Phillip J. Francis,

Defendant and Appellant.

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MEMORANDUM DECISION

Case No. 20110176‐CA

F I L E D

(August 2, 2012)

  2012 UT App 215

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Second District, Ogden Department, 101901464

The Honorable Michael D. DiReda

Attorneys: Samuel P. Newton, Kalispell, Montana, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges McHugh, Voros, and Roth.

VOROS, Associate Presiding Judge:

¶1 Defendant Philip J. Francis appeals his conviction for burglary of a dwelling on

the ground that the church he burglarized does not qualify as a dwelling.  We affirm.

¶2 Francis was convicted of one count of burglary of a dwelling, a second degree

felony under Utah Code section 76‐6‐202, in connection with his unauthorized entry

into a church in Ogden, Utah.  See Utah Code Ann. § 76‐6‐202 (2008).  The church opens

into a split entry and has two levels, each accessible from the other.  The main floor

contains classrooms, a sanctuary, and an office.  The basement contains a kitchen,

restrooms, and two bedrooms.  A church caretaker lives in one of the bedrooms.
1

Francis also states that distinguishing structures based on “the status of an

overnight guest” “appears to violate equal protection of the United States and Utah

Constitutions since it does not apply equally to all similarly situated defendants.”  We

do not read this single sentence as asserting a claim under either the state or federal

constitutions.  If Francis does intend for this sentence to make a constitutional claim, the

claim is unpreserved and inadequately briefed.  We therefore decline to address its

merits.  See Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506 (“[W]e are resolute in

our refusal to take up constitutional issues which have not been properly preserved,

framed and briefed . . . .”), rev’d on other grounds, 547 U.S. 398 (2006).

20110176‐CA 2

¶3 Francis contends that the church does not satisfy the statutory definition of a

dwelling.  This claim presents a question of statutory interpretation, an issue of law that

we review for correctness without deference to the trial court.  See State v. Garcia, 2010

UT App 196, ¶ 11, 236 P.3d 853, cert. denied, 247 P.3d 774 (Utah 2011).

¶4 Under Utah law, burglary is a third degree felony “unless it was committed in a

dwelling, in which event it is a felony of the second degree.”  Utah Code Ann.

§ 76‐6‐202(2).  A “dwelling” is a “building which is usually occupied by a person

lodging in the building at night, whether or not a person is actually present.”  Id.

§ 76‐6‐201(2).

¶5 Francis contends that, to fall within this definition, “a structure must . . . be the

type of structure that typically houses overnight guests.”  Thus, he argues, “If someone

burglarizes a structure in which people do not typically sleep—a garage, office, or a

church—then he would receive a third degree burglary, again regardless of whether a

person actually sleeps there.”1

¶6 Francis’s argument is foreclosed by this court’s holding in State v. McNearney,

2011 UT App 4, 246 P.3d 532.  See id. ¶¶ 9–11 (concluding that a new, never‐occupied

house is not a dwelling).  In McNearney, we rejected the view that “a structure’s type, or

the purpose for which it was built, [is] the determining factor in applying the dwelling

definition.”  Id. ¶ 9.  Instead, we emphasized that the key inquiry is “the actual use of

the particular structure that is burglarized, not the usual use of similar types of

structures.”  Id.  Thus, it is not the nature of the structure, but rather its use that is

determinative.  See People v. Ryan, 644 N.Y.S. 2d 118 (N.Y. Sup. Ct. 1996) (concluding,
2

We do not consider Francis’s argument based on Utah Code section § 76‐6‐

201(1)(a)(i), see Utah Code Ann. § 76‐6‐201(1)(a)(i) (2008) (defining “building” as

including “each separately secured or occupied portion of the structure or vehicle”), as

it was raised for the first time in oral argument.  See In re Gregory, 2011 UT App 170,

¶ 10, 257 P.3d 495 (“We will not reverse based on an unbriefed argument raised for the

first time at oral argument.”), cert. denied, 262 P.3d 1187 (Utah 2011).

20110176‐CA 3

under a similar New York burglary statute, that a church in which several people lived

was a dwelling).

¶7 Because the church Francis burglarized “is usually occupied by a person lodging

in the building at night,” it is a dwelling for purposes of the burglary statute.  See Utah

Code Ann. §§ 76‐6‐201 to ‐202 (2008).  Thus, when Francis burglarized the main floor of

the church, he burglarized a dwelling.2

¶8 Affirmed.

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J. Frederic Voros Jr.,

Associate Presiding Judge

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¶9 WE CONCUR:

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Carolyn B. McHugh,

Presiding Judge

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Stephen L. Roth, Judge